Our Reply To A Totally Bogus Monkey Selfie Cease & Desist
from the monkey-see,-monkey-do,-monkey-needs-to-learn-the-law dept
Dear Icondia,I am in receipt of your letter, dated December 22nd, but received earlier this week, in which you assert a number of things and demand that we "cease and desist" from "all infringing activities" concerning the now rather famous "selfie" image taken by a macaque monkey using a camera supplied by photographer David Slater. I am assuming you're familiar with this image -- as is much of the world -- but as a reminder, it is this one:
That is still true today, even as you present your rather unique legal theories. I gather, from your website, that your organization was set up to try to cash in on the Image Rights (Bailiwick of Guernsey) Ordinance, 2012, specifically, in trying to make a big deal out of a new (and tremendously problematic) intellectual property concept known as "personality rights." It also appears that the world has not beaten a path to your door over this law, as one analysis shows that in the years since this new law passed only 51 registrations have occurred, three of which are related to this particular macaque monkey.
This law does not apply to us for a variety of reasons, just a few of which we will detail below. If we need to lay out even more reasons as to why your argument is absolutely frivolous -- such as in court -- we are prepared to do so.
First, we are a US-based company with all of our servers in the US, and the laws of the US apply to us. The laws of Guernsey do not. In the US, the image is quite clearly in the public domain, as we have discussed for years. While I recognize that some people employed by your firm have some rather unique legal theories for why this photo may not actually be in the public domain, the US Copyright Office disagrees with you. This past August, the US Copyright Office released a draft of its Compendium of Copyright Practices, which notes, rather directly, that a photograph taken by a monkey is not subject to copyright, but rather would be in the public domain. It is on page 54 of the document, though I'll post a screenshot here of the relevant portion (which I can easily do because, as a work of the federal government, this document is also in the public domain):
As the image is unquestionably in the public domain in the US, we are not infringing on the "exclusive image rights" of the image. Thus we will not cease and desist from posting that image. We need neither permission nor a license to continue to do so and we do not believe that either you or Mr. Slater have any legitimate property rights in that image.
Even if, for argument's sake, there was a possibility of a US copyright in the image, we would still not be taking the image down, as our use of it is unquestionably fair use. The times where we have posted the image have all involved significant amounts of journalistic commentary about the image (and, mainly, how the image is in the public domain). News reporting, commentary, and criticism are all quintessential examples of fair use, and our use of the image clearly meets those criteria.
Now, let's take this a step further, and assume (solely for argument's sake) that the law of Guernsey somehow applied to us -- which it does not. Again, the law would not apply to our use. First, the personality rights law that you rely on allows for someone to register their own personality. The image here is of the macaque monkey, not David Slater or Wildlife Personalities, and thus only the macaque monkey in question could potentially qualify to register the image. But, as with copyright law, the law in question states that it only applies to a "natural person" which means "a human being." Thus, you immediately run into the same issue as to why this image is in the public domain -- it was not authored by a human being and thus is not only not subject to copyright law, but similarly not subject to Guernsey's "personality images."
Second, even if we were to ignore that particular issue, which seems rather fatal to your argument, the image in question does not appear to meet the criteria necessary to make the claims you are making. Section 28 of the Guernsey law you are trying to apply here requires that the image must be "distinctive" meaning that it is "recognised as being associated with the registered personality." However, the "personality" in question appears to be "Wildlife Personalities Limited." While that may be David Slater's company, the image in question is not widely associated with that organization, and is certainly not recognized as such. In fact, nearly all of the public discussions in the last few years about the image are about how the image is in the public domain and emphatically not linked to Slater or any company he may have. The image is recognized as being associated with the monkey itself, but again, the law clearly states that such personality rights only applies to "human beings."
Third, and more importantly, even assuming (again, for argument's sake) (1) that the image is not in the public domain, (2) that we are somehow subject to the laws of Guernsey and (3) that the image in question is properly registered under Guernsey's laws, the law still would not apply to our use. That's because Section 32 of the law makes it rather clear that it is not infringement to use such an image for "reporting current events or news commentary." Here's the section of the law, in case you haven't read it in a while:
Fair dealing with a registered personality's image for the purposes of -In short, under no possible interpretation of any law are we infringing on anyone's usage in posting the image as part of our discussion concerning how it is, unquestionably, in the public domain. Thus, we have to reject your assertion that we are somehow infringing on the image, while similarly refusing to sign your "settlement agreement" as we have nothing to settle and nothing to agree to.(a) reporting current events or news commentary (including criticism or review), ordoes not infringe that registered personality's image rights.
(b) publishing or broadcasting any other bona fide journalistic material which is a subject of general or public interest,
I would wish you luck in your quixotic quest to create this new type of "personality right" but, frankly, I find it an offensive and dangerous expansion of theories that seek to lock up public domain information and a clear attempt to infringe on free speech rights here in the US and around the globe. If you have any further questions about any of this, I would be happy to discuss them with you or put you in contact with our legal counsel who I'm sure would be more than happy to review these points in even greater detail with you.
Mike Masnick
Techdirt / Floor64 Inc.
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Filed Under: copyright, david slater, fair dealing, fair use, guernsey, monkey, monkey selfie, personality rights, public domain
Companies: icondia, wildlife personalities limited
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Step one: Apply cold water to burn area
All I can say to those poor saps is: Next time, pick your targets with more care, and after a bit more research. Might I suggest Popehat, it's possible they might cover the monkey selfie next, better send a C&D just to be sure.
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Re: Step one: Apply cold water to burn area
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Re: Step one: Apply cold water to burn area
the camera explosion (as it were) in recent years has filtered down to hunters (who actually 'pioneered' a lot of work in this area), who like to use so-called 'game cameras' or 'trail cameras' to capture images of -usually- wildlife tripping a motion-detector/whatever, to take pictures -still or video- of themselves which is either stored, or simply uploaded to the hunter's email, and he (she) checks it from there...
so, the natural question arises: who (if anyone) 'owns' the copyright on the trail cameras where the animal triggers the picture ? ??
it would seem from a common sense perspective, the hunter does, since he set up the camera for that purpose... *BUT*, does the fact that the wildlife 'takes' the picture in tripping the shutter make any difference ? ? ?
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Re: Re: Step one: Apply cold water to burn area
This was discussed in the comments of the previous article on this issue. My opinion is that there is no copyright, but others (like the BBC) disagree. Ultimately this will end up in court (unless the copyright office or Congress preempts) as we will need to set some legal precedent before it can be resolved.
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Re: Re: Step one: Apply cold water to burn area
I don't think so. In the case of trail cameras, a person actually set them up and made creative decisions about what the photos will look like(framing, etc.)
The key point about the monkey photo is not that the monkey pressed the trigger. It's that the monkey was the one who put all of the creativity into the shot. The owner of the camera had nothing to do with the creation of the photo aside from being a temporary equipment supplier.
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Re: Re: Re: Step one: Apply cold water to burn area
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Re: Re: Re: Re: Step one: Apply cold water to burn area
The clause doesn't say anything about artistic intent, just authors and their "writings".
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Re: Step one: Apply cold water to burn area
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Kinda makes me wish Prenda or someone would try this shit with Techdirt.
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Re:
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Mic drop or...
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Re: Mic drop or...
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New Lawsuit
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Re: New Lawsuit
Wake up and smell the dick that you so eagerly suck. Namely MM's, you Brownnose.
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Re: Re: New Lawsuit
Hmmm guess I like the taste.... go me for a brownnose.
you sir.... well guess i take the moral high ground.... haven't insulted you (yet).
go die in a fire. (my bad... at least I'm honest cause if you would like to actually post some meaningfull (not adhom) commentary around why the lawyers/mike/layers/mike thing somehow undermines his frigging point!.... well maybe I would have skipped the whole "die in a fire... you meaningless pointless runt of humanity" adhom I enjoyed soooo much back there.
but let us not let logic get in the way of a good flamewar, soooo... what was your point again? site threatened by lawyers uses lawyers to craft response??
please do educate and elucidate me... I await your response with baited breath? (nah.... gone off to get drunk again... really)
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Re: Re: Re: New Lawsuit
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Annnnd my hate of lawyers is still intact.
Well done response, it is really sorta sad when these master of the universe style lawyers get schooled.
http://www.guernseyfinance.com/press-room/news/2013/08/first-company-registered-under-guern sey-image-rights-law/
But he likes yachts, so he can't be all bad right?
No wonder he doesn't know the law... he's a secretary.
Director of 5 different things all at the same time.
I wonder if they are funneling income from the image they don't have the rights to into the tax shelter there.
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Re:
Apparently, the "personality" that Icondia has adopted for itself includes a generous helping of "asshole".
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Re: Re:
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Moar Excuses
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Re: Moar Excuses
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Re: why he's grinning.
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Re: Moar Excuses
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Re: Re: Moar Excuses
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Re:
no wait...
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Re:
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Rights
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-and Masnick brings the pain with a legal body slam from the corner!
For our next match-up we have MC Tim G vs Rampant Stupidity!
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The only worse person to mess with
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Re:
You can try this at your own risk. The problem is that while the author may be unknown to you, that doesn't mean it's unknown to everyone. If the author is truly "unknown", you won't get sued because nobody would have standing to sue you - but if the author DOES turn up, they have every right to sue.
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Re: Re:
That's not even true. You wouldn't lose the lawsuit, but there's no guarantee someone who doesn't own the copyright wouldn't sue you for it anyway.
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Re:
Don't be ridiculous. Works where the author is unknown were quite clearly created by aliens.
http://knowyourmeme.com/memes/ancient-aliens
Also, there's no reason for a divine being to register a copyright. Why bother going to court when you can just smite infringers?
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Re:
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Did a company really sign the letter?
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Summing it up...
I would wish you luck in your quixotic quest to create this new type of "personality right" but, frankly, I find it an offensive and dangerous expansion of theories that seek to lock up public domain information and a clear attempt to infringe on free speech rights here in the US and around the globe.
The tl;dr of Mikes response could be:
“Thank You Icondia! But your Image Rights are in Another Windmill!”
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TechDirt wasn't the only one who got this letter
It's unfortunate I am now a part of the story and hope that it ends here, but given what I've seen so far, I wouldn't bet on it. And for what it's worth, they paid $6 and change to send this via certified mail. That plus the labor of Iconia, I wonder how big the hole Mssr. Slater is digging for himself. Which reminds me of one of my favorite performance review comments of all time: ...has hit rock bottom and has started to dig.
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Re: TechDirt wasn't the only one who got this letter
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Re: Re: TechDirt wasn't the only one who got this letter
I find it very interesting that on Keith Laker's LinkedIn profile, he states that Icondia is based in Guernsey.
CEO
Icondia
November 2012 – Present (2 years 2 months)
Guernsey
Founder member and CEO of Icondia Ltd
Their contact phone numbers are all +44 (Great Britain). I'm not sure exactly what that address is in New Orleans, but I suspect it's just a postal presence. I doubt this company has any legal sway in the USA. Note the signature on the letter in incomprehensible and is labeled Icondia Ltd. They weren't even brave enough to have an actual person put their name on it.
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Re: Re: Re: TechDirt wasn't the only one who got this letter
Their contact phone numbers are all +44 (Great Britain). I'm not sure exactly what that address is in New Orleans, but I suspect it's just a postal presence. I doubt this company has any legal sway in the USA. Note the signature on the letter in incomprehensible and is labeled Icondia Ltd. They weren't even brave enough to have an actual person put their name on it.
Since Guernsey is quasi-UK, the +44 country code still applies:
http://www.howtocall.info/country/UK/city/Guernsey
Second, they do have one US employee, who is based in Louisiana -- hence the US address.
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Re: Re: Re: Re: TechDirt wasn't the only one who got this letter
However now that I look at her LinkedIn profile, I see that she proclaims: I am the CEO of Icondia LLC, New Orleans, Louisiana. That must be her scribble as the signatory of the letter I received.
FYI, here is Google Street View for 862 Camp St in New Orleans. There are 22 companies with this as their address, and Icondia isn't even listed there. Note that "John J. Sullivan" is the registered agent for all of those businesses. And if you zoom in on Google Street View all the way, you can see that's his name on the plate below the street address. Given the modest size of the building, I seriously doubt these companies are actually working out of there. Smells a lot like the copyright trolls' East Texas "offices", and John J. Sullivan is simply taking money from people for the use of his address.
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WELL DONE
such a well worded smack down
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Victims of legal threats should be allowed to seek compensation for the time and money they spend defending themselves against intimidation letters.
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Dude should have given the monkey a banana
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Re: Dude should have given the monkey a banana
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Post Script?
You forgot to add the P.S.
"F--K Y--R M----R
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Re: Post Script?
Please consider the environment before printing this and don't forget to bite me.
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Good response
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But what about the monkey?
That would all make as much sense as what is happening now and help salvage the character of the traduced and innocent fellow creature. Won't someone think of the monkey?
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Re: But what about the monkey?
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Re: Re: But what about the monkey?
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TD atty's were on vacation
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To anyone who missed it:
For anyone who hasn't read it yet, or needs a laugh, make sure to give it a read, it's all sorts of hilarious.
https://www.techdirt.com/articles/20110712/01182015052/monkeys-dont-do-fair-use-news-agenc y-tells-techdirt-to-remove-photos.shtml#c1498
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The important lesson to be learned
Take that!
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Re: The important lesson to be learned
I've no doubt this will happen at some point, and the insolent sole guardian of this public property will at some point be sued to make available said public property. Or he might have his devices compromised and the public data copied and publicly distributed in spite of him and his shitty attitude.
I feel for you, brah. People tend to treat others the way they treat themselves, so you must not be very compassionate or forgiving of yourself. That's a hard way to exist in the world.
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Re: Re: The important lesson to be learned
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Re: Re: The important lesson to be learned
It's like owning a DVD with copyrighted material on it, except a little the opposite. I own the DVD, I can do what I like with it. I can sell it, destroy it, etc. The movie on that DVD is copyrighted, so it would be illegal for me to make a copy for someone else. I would never have a legal requirement, even if the company who owned the copyright to that movie, to do anything with it. They could say, "We lost every copy of that movie in existence, except yours. We own the copyright to the movie, so give us a copy." I could say, "Nope. It's my DVD, haha!"
In this theoretical case however, I own the device the data is on, and contains the only copy of that image. It may be in the public domain, but that's just the image (like the movie on the DVD), and the physical medium (like the DVD disk) is owned by me.
Again, this is not something I would do, but it's interesting to note that the individual who owned the camera did have all the rights in the world to not copy the public domain photo without financial compensation. The problem he ran into was he put it on the internet, where the webserver distributed copies of the images to all the visitors. As the image was in the public domain, they had the rights to save that copy they got from the webserver and use it how they saw fit.
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PS: Like the Sorites Paradox
If I set up a camera that takes photos at a fixed interval, I own the copyright to those images taken at those intervals.
If I set up a camera tied to a motion sensor, so it takes a photo when something moves in front of it: Do I own the Copyright to the images? Should I own the Copyright to the images?
If I set up a camera with a pressure plate tied to the shutter so it takes a photo when something steps on that pressure plate: Do I own the Copyright? Should I own the Copyright?
If I set up a camera tied to an accelerometer, so it takes a photo if it is moved or bumped: Do I own the Copyright? Should I own the Copyright?
If I set up a camera with the shutter activated by a little button on top, so that if an animal presses that button, I don't own the copyright.
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The Monkey Selfie
Here's the text of an email I have sent to Icondia, I couldn't help it. Once I finally quit laughing, wiped the tears out of my eyes and checked my underwear, here's what I sent them
Having read the article at Techdirt about your "cease and desist" request, I am, frankly, appalled at the obvious lack of your understanding. First, I would highly recommend that you peruse that article at Our Reply To A Totally Bogus Monkey Selfie Cease & Desist | Techdirt
image
Our Reply To A Totally Bogus Monkey Selfie Cease & Desis...
Dear Icondia, I am in receipt of your letter, dated December 22nd, but received earlier this week, in which you assert a number of things and demand that we "cease ...
View on www.techdirt.com
Preview by Yahoo
I believe that Mr. Masnick's reply is fairly self-explanatory. Your actions do nothing to make me want to register any images with your company,. If you cannot follow the pertinent legal issues involving this issue, then how can I trust you to correctly protect my interest in an image that is actually in violation of applicable copyright laws.,
While I can appreciate what you are attempting to offer, I have very serious doubts in your ability to actually deliver as promised. If you do not have enough common sense to see the flaws enumerated by Mr. Masnick, then you either a.) need to get a legal team that actually understands international copyright issues (and not some drug addled interpretation of the Berne Convention) or b.) don't act like fatuous money grubbing idiots.
Sincerely,
R.Max Breaux
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Re: The Monkey Selfie
http://retractionwatch.com/2014/08/11/intellectual-property-lawyer-loses-papers-for-plagiarism/# more-22078
Seems Ms. Adrian has porlems with plagiarism... And she's supposed to be knowledgeable about IP???????
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Too bad for Mr Slater
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ahem....
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Guernsey - troll island?
"Center for excellence" indeed.
http://www.aohall.com/protection-and-exploitation-intellectual-property-rights-guernsey-overv iew
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Why waste your breath?
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